Slater v Sellman - [2019] NZCA 670

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA339/2019
[2019] NZCA 670

BETWEEN	CAMERON JOHN SLATER Appellant
AND	JOHN DOUGLAS SELLMAN First Respondent OFFICIAL ASSIGNEE IN BANKRUPTCY OF THE PROPERTY OF CAMERON JOHN SLATER Second Respondent BOYD ANTHONY SWINBURN Third Respondent SHANE KAWENATA FREDERICK BRADBROOK Fourth Respondent

Counsel:	Appellant in person J P Cundy for First, Third and Fourth Respondents
Judgment: (On the papers)	19 December 2019 at 11.30 am

JUDGMENT OF BROWN J
(Review of Deputy Registrar’s decision)

The application to review the Deputy Registrar’s decision declining to dispense with security for costs is declined. Security for costs of $6,600 is payable by Mr Slater by 17 January 2020. ____________________________________________________________________

REASONS

Introduction

Mr Slater is one of several defendants in a defamation proceeding in the High Court at Auckland (CIV-2016-404-1312) in which the three plaintiffs allege they were defamed by Mr Slater in a series of blog posts.
On 23 November 2018 Palmer J, who is case managing the proceeding to trial, granted applications by the plaintiffs that Mr Slater provide further particular discovery and that he attend court to be orally examined on account of his having provided insufficient answers to interrogatories.
On his own application Mr Slater was adjudicated bankrupt on 27 February 2019. Consequently in a joint memorandum of 14 March 2019 with counsel for the Official Assignee, the plaintiffs sought leave to continue the proceeding against Mr Slater under s 76(2) of the Insolvency Act 2006 (the Act). Palmer J granted leave on 20 March 2019.

The High Court judgment

It was contended for Mr Slater that consequent upon his bankruptcy the defamation proceeding was against Mr Slater’s bankrupt estate, which was in the hands of the Official Assignee, and that the proceeding could no longer continue against Mr Slater in person. In the judgment under appeal delivered on 17 July 2019 Palmer J rejected that argument.[1] The Judge explained:
[26]     On the basis of what I have heard so far, I would be inclined to doubt that bankruptcy alters the legal personality of the bankrupt. Rather, I would expect the Official Assignee is empowered to exercise the bankrupt’s rights and powers in a legal proceeding which are related to the bankrupt’s property interests. I would expect a bankrupt continues to be personally responsible for the discharge of duties in legal proceedings which are purely personal in nature and unrelated to any property interest of the bankrupt.
[27]     No doubt further argument would elucidate this issue. But I do not need to hear further argument because I do not consider I need decide it. The issue here is whether Mr Slater’s bankruptcy necessarily negates the need to comply with the Court’s orders to date. Irrespective of the default legal effect created by Mr Slater’s bankruptcy, I consider it need not and that it does not.
[28]     Section 76(2) of the Act provides that “on the application by any creditor or other person interested in the bankruptcy, the court may…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Slater v Sellman

Details

AGLC: Slater v Sellman [2019] NZCA 670
Case: [2019] NZCA 670
Decision Date: 19 December 2019 at 11.30 am

CaseChat Overview and Summary

In the Court of Appeal of New Zealand, the case of Slater v Sellman involved an appeal against the decision of the High Court to continue a defamation proceeding against Mr. Slater, who had been adjudicated bankrupt. Mr. Slater contested the court's decision, arguing that his bankruptcy should have resulted in his personal liability being extinguished, and thus the proceeding should be against his bankrupt estate rather than himself. The Court of Appeal found that Mr. Slater's bankruptcy did not alter his legal personality or prevent him from maintaining involvement in the court proceedings, and that the court had the jurisdiction to order him to comply with its previous orders. Consequently, the appeal was deemed without merit, and the application to review the Deputy Registrar's decision declining to dispense with security for costs was dismissed.

The primary legal issue before the Court of Appeal was whether Mr. Slater's bankruptcy altered his legal personality such that he was no longer subject to the High Court's jurisdiction in the defamation proceeding. The Court of Appeal held that bankruptcy does not create a distinct legal entity, and Mr. Slater's legal personality remained unaffected. The court also found that Mr. Slater was still subject to the High Court's jurisdiction due to an order made under s 76(2) of the Insolvency Act 2006. The Court of Appeal reasoned that a reasonable and solvent litigant would not pursue an appeal with weak merits and potential costs outweighing the benefits, thus there were no exceptional circumstances to dispense with the requirement for security for costs.

The Court of Appeal found that the appeal raised no substantial issues of public interest and was without merit. The court concluded that Mr. Slater's contentions regarding the creation of separate legal personalities and the termination of the High Court's jurisdiction over him personally were unsound. As a result, the application to review the Deputy Registrar's decision declining to dispense with security for costs was dismissed, and Mr. Slater was required to pay security for costs of $6,600 by 17 January 2020.

Orders